DeKelvin Rafael Martin has been indicted for the murders of Travis and Ila Ivery and Savion Wright, the grandparents and the 12-year-old son, respectively, of Martin’s girlfriend, Tymika Wright. Martin has also been charged with Ms. Wright’s rape, as well as other related crimes. The State has filed written notice of its intent to seek the death penalty. This Court granted Martin’s application for interim review and ordered the parties to address whether the trial *505 court erred in denying Martin’s motion in limine to preclude the admission of Ms. Wright’s prior testimony. For the reasons set forth below, we affirm the trial court’s order.
On January 4, 2005, Martin pleaded guilty to all sixteen counts of his indictment, including the three murder charges. Immediately following the entry of his plea, a bench trial was held on the issue of sentencing, during which Ms. Wright testified for the State. In December 2006, Martin was allowed to withdraw his guilty plea due to the trial court’s failure to inform him of all his constitutional rights as set out in
Boykin v. Alabama,
Whether Ms. Wright’s prior testimony “is admissible as a matter of Georgia evidence law, and whether it is admissible as a matter of federal constitutional law, are two distinct questions.”
Prater v. State,
[i]n keeping with the well-established principle that this Court will not decide a constitutional question if the appeal can be decided upon other grounds [cit.], we first address the [evidentiary] issue[ ] raised by the appeal.
Powell v. State,
1. OCGA § 24-3-10, the “prior testimony” exception to the hearsay rule, permits the admission of the testimony of a witness at a prior proceeding provided the proponent is able to show that:
(1) the declarant is unavailable as a witness at trial; (2) the testimony was given under oath at a hearing or other proceeding; and (3) the parties and issues are substantially similar. [Cits.]
Pope v. Fields,
For the purpose of construing OCGA § 24-3-10, it is well established that “the qualifying adverb ‘substantially’ ” means something less than “identical.”
Atlanta & West Point R. v. Venable,
“(The rule) does not require that all the issues ... in the two proceedings must be the same, but at most that the issue on which the testimony was offered in the first suit must be the same as the issue upon which it is offered in the second. Additional issues or differences in regard to issues upon which the former testimony is not offered are of no consequence. Moreover, insistence upon precise identity of issues . . . [is] out of place with respect to former testimony where the question is . . . merely .. . the salvaging, for what it may be worth, of the testimony of a witness not now available in person.” [Cit.]
Prater,
supra,
However, there must be “sufficient similarity so that there was previously an adequate opportunity for cross examination.”
Prater,
supra,
This Court has never considered the admissibility of the prior testimony of a witness at a sentencing trial. However, in applying the prior testimony hearsay exception on a case-by-case basis, we have found former testimony at committal hearings and preliminary hearings admissible at the trial of the case where the party against whom the testimony was offered had an adequate opportunity for cross-examination at the prior proceeding, implicitly “conclu[ding] that the issue of probable cause to suspect the defendant of guilt is
*507
substantially the same, for [OCGA § 24-3-10] purposes, as the issue of ultimate proof of guilt.”
Prater,
supra,
Martin contends that his situation is analogous to that of the defendant in
Dickson,
supra, in which it was held error to admit at trial prior testimony from a defendant’s bond hearing. That holding was premised on the court’s determination that, because a witness at a bond hearing only provided information regarding whether there was a significant risk that the defendant would violate the conditions of his bond pending trial, and “because the focus of the bond hearing was whether to allow the defendant to be released on bond, not whether the criminal allegations [against him] were supported[,]” the defendant there did not have a meaningful opportunity to cross-examine the unavailable witness regarding his prior testimony. Id. at 540 (1). Martin maintains that, similarly, he had no meaningful opportunity to cross-examine Ms. Wright, because a witness for the State at a sentencing trial “simply provides information concerning the impact the crime has had on her life” and because the “focus” of a sentencing trial is determining what sentence a defendant should receive, not whether the State can prove beyond a reasonable doubt that he is guilty of the offenses alleged in the indictment against him. Moreover, Martin argues that he had no reason to cross-examine Ms. Wright regarding issues of his culpability or Ms. Wright’s credibility, because his guilt was not at issue at his sentencing trial. See
Wilson v. Reed,
However, as this Court has repeatedly noted, evidence relating to guilt or innocence is relevant to sentence and, thus, admissible, in a sentencing trial,
*508
Alderman v. State,
*507 not because the validity of the conviction is at issue, but because the [factfinder] needs to examine the circumstances of the offense[s] (as well as any aspect of the defendant’s character or prior record) in order to decide intelligently the question of punishment. [Cits.]
*508
The State also had the burden of proving beyond a reasonable doubt that Martin committed an aggravated battery against Ms. Ivery, as Martin was not charged with that crime and, therefore, did not plead guilty to it.
2
See
Wade v. State,
Our review of the record shows that Ms. Wright’s testimony was presented by the State at the sentencing trial to help meet its burden to prove beyond a reasonable doubt the alleged statutory aggravating circumstances and that it included Ms. Wright’s account of Martin’s alleged commission of her own rape, the murders of her son and her grandfather, and the aggravated battery of her grandmother that ultimately resulted in a third murder charge against Martin for her death. The State seeks the admission of this testimony at Martin’s guilt/innocence trial to help meet its burden to prove beyond a reasonable doubt that he is guilty of these crimes. At both proceedings, “it would be to [Martini’s benefit to show that. . . the witness [was] not competent to testify as to certain facts essential to the [S]tate’s case,... or that other material defects or misstatements were present in the testimony.”
State v. Ricks,
2. As our discussion in Division 1 shows, Ms. Wright is unavailable for trial, and Martin was afforded an adequate opportunity to cross-examine her. Therefore, the admission of Ms. Wright’s prior testimony will not violate the Confrontation Clause.
Crawford,
supra,
Judgment affirmed.
Notes
The State sought to establish the following statutory aggravating circumstances: that Savion’s murder was committed by Martin while he was engaged in Ms. Wright’s rape, in an aggravated battery against Ms. Ivery, and in Mr. Ivery’s murder; that Mr. Ivery’s murder was committed by Martin while he was engaged in Ms. Wright’s rape, in an aggravated battery against Ms. Ivery, and in Savion’s murder; and that Savion’s murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. OCGA § 17-10-30 (b) (2), (b) (7).
The alleged crimes occurred on October 1, 2002. Ms. Ivery died as a delayed consequence of her injuries in January 2003, after Martin’s December 6, 2002, indictment for the murders of Savion and Mr. Ivery and for other related crimes. On September 5, 2003, the Fulton County grand jury returned a second indictment against Martin, which is the one to which he pleaded guilty, that additionally charged him with the murder and felony murder predicated on aggravated assault of Ms. Ivery.